Estate of Ballentine

Testator disposed of all the estate by will. There was a house and lot upon which testator and his family had resided for years, and which the widow continues to occupy. The children are adults. No homestead was selected and declared during the life of testator. The widow applied to have the residence set apart to her as a homestead. Some of the devisees resisted on the grounds stated in 45 Cal., 697 . The objections were overruled and the residence set aside.

The account of the executrix was rendered for settlement, and items were objected to. The executrix, 'under an order of sale, sold parcels of real estate. She employed real estate agents to aid her, under an agreement that they should have, for their services, all moneys that they could obtain above certain specified sums. She sold real estate through Madison & Burke for $7,256, and accounted for $6,556, leaving $700 for the agents; and through Levy & Levitsky for $10,950, and áccounted for $9,900, leaving $1,050 for the agents.

Neither Madison & Burke nor Levy & Levitsky were purchasers; they were agents, brokers, and the amounts received by them from the purchasers were received in that capacity. An executrix has no…